§ 19.04 EXCEPTION: ESSENTIAL PERSONS

• Jurisdiction: United States

§ 19.04. EXCEPTION: ESSENTIAL PERSONS

Witnesses whose presence is essential to the presentation of the case may remain in court. This exception "contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation."²¹ Thus, in one case the court permitted a former employee to remain in the courtroom because he was "the person most knowledgeable about the history and complex factual details of the matters at issue."²² Moreover, trial counsel often need an expert's advice when cross-examining the opponent's expert.²³

The burden of establishing that a person is "essential" rests on the party who desires that person's presence at trial.²⁴

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Notes:

^[21] Fed. R. Evid. 615 advisory committee's note.

^[22] United States ex rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275, 1296 (10th Cir. 2010).

^[23] See Malek v. Federal Ins. Co., 994 F.2d 49, 53 (2d Cir. 1993) ("Under the circumstances revealed in this case, we find that the district court erred in sequestering [expert] Friedell. Our review of the record reveals that Redsicker's testimony differed from his reports: Redsicker testified that the fire was an 'intense fire' but did not make that specific finding anywhere in his report. Since this was an important finding bearing on the question of arson and was not made in Redsicker's reports, Friedell's presence in the courtroom was important to the presentation of the Maleks' case, and a ten-minute recess was not an adequate substitute for his presence.").

^[24] See Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996) ("[T]he party seeking to avoid sequestration of a witness bears the burden of proving that a Rule 615 exemption applies."); Government of Virgin Islands v. Edinborough, 625 F.2d 472, 476 (3d Cir. 1980) ("A party who believes that the presence of the witness is 'essential' must bear the...